Pettiford v. State

Full title: Michael Pettiford v. State of Connecticut

Court: Superior Court of Connecticut

Date published: Dec 22, 2015

FSTCV106007480 (Conn. Super. Ct. Dec. 22, 2015)

Opinion

FSTCV106007480

12-22-2015

Michael Pettiford v. State of Connecticut

Taggart D. Adams, Judge Trial Referee.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS AND MOTION FOR JUDGMENT OF DISMISSAL; PLAINTIFF'S MOTION TO REOPEN EVIDENCE (Dkt. Entries 151.00 153.00, 155.00)

Taggart D. Adams, Judge Trial Referee.

I. Background

This personal injury action against the State of Connecticut (" state") was commenced pursuant to General Statutes § 52-556 which provides that:

Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.

The plaintiff Pettiford was seriously injured in January 2009 when struck by a motor vehicle admittedly owned by the state and operated by a state employee, and he commenced this case pursuant to the above statute. A trial took place between November 5 and November 13, 2015, and on the latter date, both the plaintiff and defendant rested their cases, and the court set a schedule for post-trial briefs.

Subsequently, the state filed a motion to dismiss the case and a motion for judgment of dismissal. Both motions seek dismissal of the action on the grounds that the plaintiff did not present any evidence at trial that the state vehicle--a van--was insured as required by Section 52-556 quoted above. The plaintiff has opposed the motions and moved to reopen the evidence. Various reply and sur-reply memoranda were filed. A hearing on these motions took place on December 8, 2015.

II. Discussion

The thrust of the state's motion is straight forward. Section 52-556 created a cause of action against the state that otherwise would not exist because of the state's sovereign immunity from lawsuits. Rivera v. Fox, 20 Conn.App. 619, 622, 569 A.2d 1137 (1980). The state points out " the well established principle that statutes in derogation of sovereign immunity should be strictly construed." White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990); Himmelstein v. Town of Windsor, 304 Conn. 298, 308, 39 A.3d 1065 (2012). Without a waiver of sovereign immunity, a court does not have subject matter jurisdiction over a lawsuit against the state. Columbia Air Servs. v. DOT, 293 Conn. 342, 347, 977 A.2d 636 (2009); Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994).

The state contends that Pettiford submitted no evidence during the trial that the state owned vehicle that struck him was insured, and therefore, his claim against the state for negligence does not fall within the waiver of sovereign immunity contained in Section 52-556. In support of this contention, the state cites three cases that emphasize the limits of the waiver of immunity contained in Section 52-556. In Allison v. Manetta, 284 Conn. 389, 933 A.2d 1197 (2007), the Connecticut Supreme Court held that a state vehicle had to be operated within the meaning of the statute and not used for warning purposes or as a protective barrier. Two Superior Court cases emphasized that the driver must be a state official or employee, and the vehicle must be owned by the state. Whitehead v. Southeast Area Transit Authority, Superior Court, judicial district of New London, CV 126015759, (June 12, 2013, Cole-Chu, J.) ; Lucarelli v. Rosson, Superior Court judicial district of New Haven, CV 01 0447538, (November 7, 2001, Robinson, J.) .

In opposition to the motions to dismiss, Pettiford asserts the van that struck him was insured and supports this assertion with copies of the State's responses to interrogatories and requests for documents both of which contain information that the state vehicle involved in this case was insured. At the December 8, 2015 hearing, counsel for the state conceded the vehicle was insured but argued its motions to dismiss should be decided first and that Pettiford's motion to reopen the evidence should be denied on the basis of Poly-Pak Corp. of America v. Barrett, 1 Conn.App. 99, 468 A.2d 1260 (1983), which held that a trial court did not abuse its discretion in denying a plaintiff's motion to reopen the evidence to admit evidence of the defendant's corporate status when faced with a motion to dismiss for failure to prove that fact. The Appellate Court found the failure to provide such evidence during trial did " not constitute inadvertence or mistake" Id. 104. The Appellate Court noted it was proper for a trial court to permit the introduction of evidence up until the case was decided if the failure to do so was the result of inadvertence or mistake, and the absence of such evidence resulted in a " serious danger of a miscarriage of justice." Id. The state also relies on State v. Allen, 205 Conn. 370, 533 A.2d 559 (1987), which held it to be an abuse of discretion to allow the criminal prosecutor to reopen evidence after the defendant had moved for acquittal on the basis that there was no evidence on one element (the length of a gun barrel) of a prima facie case.

Our holding in this case does not preclude a trial court from exercising its discretion to reopen a case. We only hold that when the state has failed to make out a prima facie case because insufficient evidence has been introduced concerning an essential element of a crime and the defendant has specifically identified this evidentiary gap in a motion for judgment of acquittal, it is an abuse of the trial court's discretion to permit a reopening of the case to supply the missing evidence.

Id., 385. In Wood v. City of Bridgeport, 216 Conn. 604, 583 A.2d 124 (1990), the Connecticut Supreme Court took up the issue in the context of a civil case saying,

In any ordinary situation if a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is a serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided . . . Whether or not a trial court will permit further evidence to be offered after the close of testimony in a case is a matter resting in the sound discretion of the court . . . Such a reopening should not be permitted if it would result in substantial prejudice to a party . . .

Id. 606 (citations and internal quotation marks omitted). The Connecticut Supreme Court went on to say in Wood :

In [ State v. Allen ] we recognized that the motion for acquittal at the close of the state's evidence authorized by the Practice Book . . . might become a 'dead letter' if such a motion were to result in affording the state another opportunity to furnish evidence essential to prove an element of the crime that had been omitted from its case-in-chief . . . A similar concern is implicated in civil cases when a motion for a directed verdict is made . . . The moving party is entitled to have such a motion decided upon the bases of the evidence that has been presented at the time of the motion.

Id. 607.

This court finds that the circumstances of this case persuade it to place more emphasis on the language of both the Appellate Court and the Connecticut Supreme Court that trial courts should exercise their discretion to reopen the evidence to avoid a miscarriage of justice. This case has been pending since 2010 and the recent trial was replete with testimony and other evidence on the issues of alleged negligence, causation and damages. Early in the case, a police report about the motor vehicle-pedestrian accident was entered into evidence after the court ruled on several requested redactions of material in the report. One redaction was agreed to by counsel for both parties and that involved removing the information from the report that the state vehicle was " self-insured." Since this was a trial to the court and not a jury case, there was really no need for such a redaction, and at the December 8, 2015 hearing plaintiff's counsel contended he did not initially propose that the insurance information be redacted. See Ex. A to Dkt. Entry 157.00 (email exchange 10/26/15). Subsequently, plaintiff's counsel contends that " insurance info" was agreed to be redacted at defense counsel's request. Id. (email exchange 10/29/15). The court makes no determination as to the cause of the redaction, but does find that the redaction was unnecessary and the result of inadvertence and mistake.

III. Conclusion

For the reasons set forth above, the court determines that the lack of evidence concerning the insured status of the state vehicle was the result of inadvertence and mistake in redacting the information that it was " self-insured" from the police report. Therefore, the motions to dismiss are denied, and the motion to reopen evidence is granted to allow plaintiff to submit for the record as an exhibit, a copy of that report including the " self insured" information.